Kilpatrick v. Coates

Hill, J.

(After stating the foregoing facts.) The sole question, to be decided in this case is the one raised by the petition and the demurrer filed thereto, viz., whether the plaintiff has an adequate remedy at law, or whether he can only obtain full relief under the facts of the case ,in a court of equity. It will be seen from the foregoing statement of facts that the plaintiff is in possession of the 20 acres of land in controversy, and has hot been put out of that possession. There is only a notice on the part of the defendants to him to vacate the premises. From his petition the plaintiff apprehends that the defendants will attempt to oust him of possession by a dispossessory warrant filed for that purpose; and the question therefore arises whether in such event the plaintiff would have an adequate remedy at law in order to set up his defense as alleged in his petition.

Civil Code (1910) § 54.09 is as follows: “Any person claiming equitable relief of the superior court may at any time, in aid of his suit, apply, for and obtain, by proper pleadings and proof, any of the extraordinary remedies known in courts of equity, or such as are or may be granted by the judge of the superior court exercising chancery jurisdiction, upon the same terms and conditions as are now granted in equitable proceedings.” And § 5410 provides: “ A defendant to any suit or claim in the superior court, whether such suit be for legal or equitable relief may claim legal or equitable relief, or both, by framing proper pleadings for that purpose, and sustaining them by sufficient evidence.” These sections are codified from the Acts of 1884-5, p. 36, and are broad enough, we think, to cover a ease like the present.

In Bashinski v. Swint, 133 Ga. 38 (65 S. E. 152), this court held: “ Where the defendant in a dispossessory-warrant proceeding bargained with a third person for the purchase of the land in question, and the plaintiff, at his instance, paid the purchase-money for him, and took a deed from the owner of the land to secure the payment by the defendant of the debt thus created, agreeing to convey the land to the defendant upon his paying such debt, and this debt has been paid as the contract between plaintiff and defendant provided, such facts when properly pleaded and proved not only constitute a complete defense to the dispossessory-warrant case, but also entitle the defendant, upon proper prayer therefor, to a decree for specific performance of the plaintiff’s promise to convey the property to him.” See also Walker v. Edmundson, 111 Ga. 454 (36 S. E. 100).

It will be observed that there is no allegation in the petition of insolvency as to either or both of the defendants, nor is there any allegation that the plaintiff could not give the bond as required by law where a counter-affidavit is filed to a dispossessory warrant. We are of the opinion, therefore, that the allegations of the petition are not sufficient to confer jurisdiction on a court of equity in order to enjoin these defendants from a mere anticipated suing out of a dispossessory warrant against the plaintiff. We are also of the opinion, should a dispossessory warrant be sued out against the plaintiff, that he could set up as a defense, in a counter-affidavit, the facts alleged in the petition in this case; and if those averments in his defense are sustained by proof, he would be protected in whatever rights he has under the contracts made with Coates, of which the other defendant, Aultman, is alleged to have had notice; and this being so, we think the plaintiff has an adequate remedy at law by which he may set up and maintain his defense against ouster from the premises of which he has been put into possession, and on which he alleges that he has made valuable improvements, and for which he has given other valuable considerations. The allegations of the petition, taken as true on demurrer, show such a part performance of the contract that it would be a fraud upon the plaintiff if the other party to the contract did not perform, so that he could have specific performance of the entire contract.

From the foregoing we conclude that the court below did not err in sustaining the demurrer and in dismissing the petition in the present case.

Judgment affirmed on the main hill of exceptions; cross-hill dismissed.

All the Justices concur.